State v. Hefner, COA22-435, ___ N.C. App. ___ (Jun. 6, 2023)

In this Jackson County case, defendant appealed his sentence as a habitual felon, arguing that his South Carolina conviction for larceny could not serve as a predicate conviction for habitual felon purposes as the statute in question no longer classifies the crime as a felony. The Court of Appeals disagreed, finding no error. 

Defendant came to trial for stealing a TV from Wal-Mart in May of 2021. After being found guilty of felony larceny and possession of stolen goods, the trial proceeded to the habitual felon phase. The prosecution offered evidence of defendant’s 2005 conviction in South Carolina for grand larceny. Defense counsel objected during the charge conference that the South Carolina code did not refer to the crime as a felony but was overruled; the trial court instructed the jury with the habitual felon status pattern jury instruction, using “crime” to refer to the 2005 conviction instead of “felony” at the request of the prosecutor. Defendant was convicted of habitual felon status and appealed.

The Court of Appeals first noted that the South Carolina larceny statute in question was changed in June of 2010 and the offense is no longer a felony, but the relevant consideration was the status of the offense at the time defendant was convicted. The court then explained that G.S. 14-7.1(b)(3) provides a mechanism for classifying crimes as felonies in states that do not explicitly refer to crimes as felonies or misdemeanors. To incorporate this mechanism, the pattern jury instruction in question was changed to permit the use of “felony” or “crime.” Slip Op. at 8-9. Even if the use of “crime” in the present case was erroneous, the court held that the jury had ample evidence to determine the South Carolina conviction was a felony due to the evidence of defendant’s conviction and the 2005 version of the statute in effect when he was convicted. The court likewise dismissed defendant’s arguments that no substantial evidence of his felony conviction was admitted and that the indictment for habitual felon status was fatally flawed.